No Deal, No Data? The Future of UK–EU Law Enforcement Information Sharing

The UK has been instrumental in developing many of the systems relied upon by EU law enforcement agencies, but the advent of Brexit means that the UK may lose access to these important tools. This briefing paper examines three options for UK–EU law enforcement information sharing post-Brexit.

The UK has been deeply embedded in EU security mechanisms for many years. In fact, the UK was instrumental in developing many of the capabilities which are now relied upon to facilitate cooperation and data sharing between member states’ law enforcement agencies (LEAs). However, with the UK set to leave the EU in a matter of weeks, there remains considerable uncertainty concerning the UK’s future position in the EU’s security architecture.

If the UK exits without a deal, access to EU databases will end, leaving UK LEAs with a major capability gap, and potentially causing significant damage to UK and European security.

If a deal is reached before the UK leaves, a new security arrangement would need to be agreed before the end of the transition period for the UK to retain access to EU tools.

The UK government must now decide on the minimum level of access to EU databases it is prepared to accept post-Brexit. The EU negotiators must likewise decide whether they are prepared to create precedents for third country access to EU tools, as part of a new bespoke security arrangement.

There are three possible scenarios for UK–EU law enforcement information sharing post-Brexit, which would each provide the UK with different levels of access to EU tools and capabilities:

Option 1: In a no-deal scenario, the UK would lose access to all information systems and databases established on the basis of EU law, leaving UK LEAs with a major capability gap. The UK could then seek to negotiate new agreements with the EU to regain limited access to certain tools as a third country.

Option 2: If a deal is reached before the UK leaves, the UK would retain access to all EU systems for the duration of the transition period. During this time, the UK may be able to negotiate new agreements to maintain limited access to certain tools as a third country following the end of the transition period.

Option 3: The UK government’s desire is to establish a new bespoke Internal Security Treaty, which would provide the UK with permanent access to most (if not all) EU information systems following the end of the transition period.

In relation to Option 1, cutting the UK off from all EU information systems would undoubtedly weaken UK and European law-enforcement capabilities, as these tools are relied upon to ensure efficient data sharing between member states’ LEAs. Furthermore, the UK is one of the largest contributors of intelligence to EU databases, so such a move may damage member states’ security as much as it damages UK security.

Option 2, in which the UK retains limited access to certain tools as a non-Schengen third country, would place the UK in a similar category to countries such as the US, Canada and Australia, but with much more limited access than Schengen Area associated states (Norway and Switzerland). This would represent a major loss of capability, albeit not to the same extent as a no-deal outcome.

The UK government’s proposal to retain access to all EU tools is ambitious, and the EU has given no indication that it will be willing to grant such unprecedented access to a third country. These proposals may also prove problematic from a legal perspective. The processes, databases and systems to which the UK wishes to maintain access are established on the basis of EU law, passed through the Court of Justice of the European Union (CJEU). The EU would therefore need to develop new legal mechanisms to ensure that the UK continues to abide by legislation governing the use of these tools and associated data-protection provisions.

Alexander Babuta is a Research Fellow in National Security Studies at RUSI. His research focuses on policing, intelligence and technology, particularly the use of big data, artificial intelligence and machine learning. He holds an MSc with Distinction in Crime Science from University College London.

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